Wisconsin AG dons national prayer day suit

Wisconsin Attorney General J.B. Van Hollen is listed among several "additional counsel" on a friend-of-the-court brief* filed with the Seventh Circuit Court of Appeals last week in support of defendant President Barack Obama, and challenging federal district Judge Barbara Crabb's April ruling that the Act of Congress directing the president to declare a national day of prayer is unconstitutional.

The friends in alliance with Obama's main argument is captioned:

The Private Prayers Contemplated By the National Day of Prayer Statute Are Less Intrusive Than the Public Prayers Routinely Offered by Each Branch of the Federal Government

Translation: The NDP is not as bad as some of the other stuff we do.

Argue the friends, formulating this conditional statement:

If public prayers opening sessions of the federal and state governments are permissible as acknowledgments of our Nation's heritage—and they surely are—than [sic] the private prayers contemplated by 36 U.S.C. § 119 also pass constitutional muster.

But that isn't the point, nor was it the question presented to, addressed, and decided by Judge Crabb. The referenced federal statute requires ("the President shall") the president to "issue each year a proclamation designating the first Thursday in May as a National Day of Prayer." It doesn't matter whether whatever prayers obtain from Congress' directive "pass constitutional muster."

What's at issue is the requiring of the executive branch by an Act of Congress to do something, as the First Amendment famously puts it, "respecting an establishment of religion." The prayers themselves — which for many people didn't even get prayed — are irrelevant.

Nobody ordered prayers, and nobody ever said anybody did. Ultimately, "no law" should mean "no law" to your garden variety strict constructionist. Or else you might reasonably expect it would.

It is DECLARED that 36 U.S.C. § 119 violates the establishment clause of the First Amendment to the United States Constitution.

That is, the statute violates the Constitution, not the prayers. Judge Crabb couldn't have been any clearer, yet J.B. Van Hollen and friends completely miss the point. The circuit court would do well to ignore the brief, just as the brief's authors ignore the district court's ruling.

I keep hearing from allegedly conservative jurisprudes about how they venerate above all other considerations, "the plain meaning of the text." Well, here is a good chance for them to prove it for once.

Update 04.14.11: And they did not.

Earlier:
Two things Barbara Crabb never said
Impeach Barbara Crabb
Western District of Wisconsin letter of the day
Pulitzer unlikely for J-S editorialist

* Brief of the States of Texas et al (.pdf; 22 pgs.).

eta: "The other side of this coin is that, the more Congress and craven politicians proselytize with rote exercises that have the depth and meaning of flag lapel pins, the more they cheapen religion."